Professional Documents
Culture Documents
United States Court of Appeals, Third Circuit
United States Court of Appeals, Third Circuit
3d 590
The petition for rehearing filed by appellants in the above-entitled case having
been submitted to the judges who participated in the decision of this Court and
to all the other available circuit judges of the circuit in regular active service,
and no judge who concurred in the decision having asked for rehearing, and a
majority of the circuit judges of the circuit in regular service not having voted
for rehearing, the petition for rehearing by the panel and the Court en banc, is
denied. Judge Ambro concurs in the decision to deny rehearing en banc and
files a separate opinion attached hereto with respect to the decision to deny
rehearing en banc.
Notes:
*
I vote to deny rehearing en banc because I believe the panel decision correctly
applies Mertens v. Hewitt Assocs., 508 U.S. 248, 256, 113 S.Ct. 2063, 124
L.Ed.2d 161 (1993); Varity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065,
134 L.Ed.2d 130 (1996); and Great-West Life & Annuity Ins. Co. v. Knudson,
534 U.S. 204, 210, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). As the panel
concludes, the focus of those opinionsparticularly Mertens and Great-West
is that any make-whole monetary relief that is not directly traceable to some
wrongly held property is properly characterized as legal, not equitable, relief,
and is thus unavailable in a 29 U.S.C. 1132(a)(3) action. Slip. Op. at 24.
Under this rubric, Eichorn's request for an adjustment of pension records that
would create a payment obligation is clearly unavailable.
Though I agree with the panel's opinion, I write separately to urge Congress or
the Supreme Court to revisit what Judge Becker called "an unjust and
increasingly tangled ERISA regime." DiFelice v. Aetna U.S. Healthcare, 346
F.3d 442, 453 (3d Cir.2003) (Becker, J., concurring). As Justice Ginsburg
noted a few years ago,
Aetna Health Inc. v. Davila, 542 U.S. 200, 222, 124 S.Ct. 2488, 159 L.Ed.2d
312 (quoting DiFelice, 346 F.3d at 456-57) (Ginsburg, J., concurring).
Nowhere is that more apparent than this case. We held in Eichorn I that the
plaintiffs here have produced sufficient evidence that AT & T and Lucent
intentionally interfered with their ERISA benefits to survive summary
judgment. Eichorn v. Am. Tel. & Tel. Corp. (Eichorn I), 248 F.3d 131, 150 (3d
Cir.2001). Now, however, we are compelled to affirm the entry of summary
judgment in the defendants' favor, not because of a failure of proof, but because
ERISAas the Supreme Court interprets itdoes not provide a remedy. As the
panel notes, plaintiffs asserting an interference claim can only seek injunctive
relief or reinstatement;1 they cannot seek make-whole monetary relief of any
kind. Slip. Op. at 31. What makes this result odd is that the preferred remedy
for the common law analog of this claiminterference with an expectancyis
money damages. See RESTATEMENT (SECOND) OF TORTS 774B & cmt.
e. Thus, to accept the Mertens/Great-West formulation is to accept that
Congress specifically allowed ERISA participants to pursue a cause of action
for interference but, with no relevant comment in the legislative history,
disallowed the most natural remedy. At risk of using another canine metaphor,2
this result is odd enough that its silent passage strikes me like "the curious
incident of the dog in the night-time."3 Moreover, as Professor John Langbein
has argued, Mertens and Great-West employ a concept of "equitable relief" so
narrow that it ignores the fact that chancery courts regularly awarded monetary
make-whole relief in appropriate circumstances, particularly to trust
beneficiaries. See John H. Langbein, What ERISA Means by "Equitable": The
Supreme Court's Trail of Errors in Russell, Mertens, and Great-West, 103
COLUM. L.REV. 1317, 1353-62 (2003).
Judicial4 and scholarly5 concern could hardly be higher. It is time for Congress
or the Supreme Court to reconsider the interplay between the extent to which
make-whole monetary relief is available under 29 U.S.C. 1132(a)(3) and the
preemption of state-law causes of action that could accord that relief.
Notes:
1
The panel also notes that in theory they could seek a constructive trust or
equitable lien over identifiable wrongly held property, though it is most
doubtful that those remedies would be appropriate in an interference claimSee
Slip Op. at 24 n. 6.
I fear that our Court has had its fill of those after theGrier case. See United
States v. Grier, 475 F.3d 556, 568 n. 8. (3d Cir.2007) (en banc); id. at 579-87
(Ambro, J., concurring in judgment); id. at 598 (Sloviter, J., dissenting); id. at
616 (McKee, J., dissenting).
[Gregory:] "Is there any point to which you would wish to draw my attention?"
[Sherlock Holmes:] "To the curious incident of the dog in the night-time." "The
dog did nothing in the night-time."
"That was the curious incident," remarked Sherlock Holmes.
....
[Sherlock Holmes:] "Before deciding that question I had grasped the
significance of the silence of the dog, for one true inference invariably suggests
others. The Simpson incident had shown me that a dog was kept in the stables,
and yet, though someone had been in and had fetched out a horse, he had not
barked enough to arouse the two lads in the loft. Obviously the midnight visitor
was someone whom the dog knew well."
ARTHUR CONAN DOYLE, Silver Blaze, in THE COMPLETE SHERLOCK
HOLMES 383, 400 (1938); see also Chisom v. Roemer, 501 U.S. 380, 396 n.
23, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991).
4
See, e.g., Lind v. Aetna Health, Inc., 466 F.3d 1195, 1200 (10th Cir.2006)
(McConnell, J.) (noting that Mertens and Great-West produce "lopsided
results"); Pereira v. Farace, 413 F.3d 330, 345-46 (2d Cir.2005) (Newman, J.,
concurring) (questioning the Great-West definition of equity); Millsap v.
McDonnell Douglas Corp., 368 F.3d 1246, 1266 (10th Cir.2004) (Lucedo, J.,
dissenting) ("Here, reinstatement would have been an appropriate equitable
remedy had McDonnell Douglas not so delayed proceedings as to make
reinstatement impossible. Thus, through no fault of their own, the class
plaintiffs find themselves devoid of the undeniably appropriate equitable
remedy of reinstatement."); DiFelice v. Aetna U.S. Healthcare, 346 F.3d at 453
(Becker, J., concurring); id. at 468 (Ambro, J., concurring); Cicio v. Does, 321
F.3d 83, 107 (2d Cir.2003) (Calabresi, J., dissenting); Van Natta v. Sara Lee
Corp., 439 F.Supp.2d 911, 941 (N.D.Iowa 2006) (Bennett, C.J.); AndrewsClarke v. Travelers Ins. Co., 984 F.Supp. 49, 55-56 (D.Mass.1997) (Young, J.).